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Uncertainty ahead for Utah’s newly married same-sex couples

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Salt Lake City Fox 13 reporter Ben Winslow, who’s been impressively on top of recent marriage equality developments in Utah, yesterday asked the $60,000 question on the minds of LGBT advocates: “Will Utah recognize same-sex marriages performed before SCOTUS stay?”  From Winslow’s article:

The Utah Attorney General’s Office is preparing a legal opinion on whether the state should recognize same-sex marriages performed in the state before the Supreme Court halted them.

The opinion, which is expected to be presented to Governor Gary Herbert on Wednesday, will determine if the state provides services to legally wed same-sex couples pending the appeal.

The U.S. Supreme Court’s decision to stay same-sex marriages in Utah pending an appeal of Amendment 3 has placed hundreds of couples in a legal gray area. After the Dec. 20 decision declaring it unconstitutional, Governor Gary Herbert directed state agencies to offer services in compliance with a federal judge’s order.

With tax season approaching, the question is one that will have real-life implications for same-sex couples–and soon.  According to Winslow, the Utah State Tax Commission meets tomorrow to decide if married same-sex couples in the state will be allowed to file joint state tax returns.  Regardless of the decision, the IRS will allow couples to file joint federal tax returns, so they could wind up in the unenviable position of have to prepare different tax returns for the state and federal level.

Doug NeJaime, a law professor at the University of California, Irvine, told the Washington Blade he believes the validity issue may lead to litigation separate from the original marriage equality complaint, Kitchen v. Herbert.  “I’m guessing that question will spawn its own litigation,” NeJaime told the Blade. “Clearly, Utah does not want to recognize those couples as married.”

Yesterday, the Utah Attorney General’s Office–which is appealing the decision granting marriage equality in the state to the Tenth Circuit–announced that it was extending the deadline by which law firms could apply to be outside counsel in the Kitchen case.  Those applications will now be due January 14–just 13 days before the state’s opening brief is due to the Tenth Circuit, which has expedited its consideration of Utah’s appeal.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making.  Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!


  • 1. Blake  |  January 8, 2014 at 8:28 am

    It's the $64,000 question, surely.

  • 2. StraightDave  |  January 8, 2014 at 9:18 am

    So **NO** credible law firm has raised their hand yet???????

    "Yesterday, the Utah Attorney General’s Office ….
    announced that it was extending the deadline by which law firms could apply to be outside counsel in the Kitchen case. Those applications will now be due January 14–just 13 days before the state’s opening brief is due to the Tenth Circuit

    In many parts of the country, this case would not be good for the rest of their business, just ask Paul Clement.

    Can you imagine UT asking the 10th for an extension because "we have such an indefensible position that nobody wants to take it"?

  • 3. palerobber  |  January 8, 2014 at 9:30 am

    this reporter has just tweeted that (shocker) Utah will not recognize the marriages.

  • 4. jpmassar  |  January 8, 2014 at 10:08 am

    The letter, sent Tuesday from Gov. Bob Herbert’s chief of staff, was released Wednesday morning:

    Dear Cabinet,

    I’m sure you are all aware of the issuance of the stay regarding same-sex marriage in Utah from the United States Supreme Court yesterday. This stay effectively puts a hold on the decision of the district court, which found state laws prohibiting same-sex marriage in Utah to be unconstitutional.

    After the district court decision was issued on Friday, December 20th, some same-sex couples availed themselves of the opportunity to marry and to the status granted by the state to married persons. This office sent an email to each of you soon after the district court decision, directing compliance.

    With the district court injunction now stayed, the original laws governing marriage in Utah return to effect pending final resolution by the courts. It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same-sex marriages.

    Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.
    Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

    We appreciate your patience and diligence in this matter. We recognize that different state agencies have specific questions and circumstances that will need to be worked through. Please do so with the Assistant Attorney General assigned to your respective agency in coordination with the Governor’s General Counsel. We also recognize that these changes affect real people’s lives. Let us carefully and considerately ensure that we, and our employees throughout the state, continue to treat all people with respect and understanding as we assist them.

    Derek B. Miller
    Chief of Staff
    Governor’s Office
    State of Utah

  • 5. palerobber  |  January 8, 2014 at 10:32 am

    from SLTrib:

    Utah Attorney General Sean Reyes informed the governor that his office had been unable to reach a legal conclusion on the "ultimate validity" of same-sex marriages performed between Dec. 20, when Shelby ruled, and Jan. 6, when the Supreme Court granted the state’s request for a stay. "That question remains unanswered, and the answer will depend on the result of the appeal process," Reyes said.

  • 6. sfbob  |  January 8, 2014 at 10:42 am

    So how are any couples that got married prior to December 31 supposed to file their income taxes? The state could probably grant them extensions on the filing of their state income taxes pending resolution of the suit but it can't grant them an extension nor really give them any definitive advice, as to how they should file their FEDERAL taxes. If the state thinks it's helping, I'd say they're doing anything but that.

  • 7. Bruno71  |  January 8, 2014 at 11:19 am

    Putting these marriages "on hold" because the AG can't surmise a legal conclusion is extremely wishy-washy. The effect is that these marriages are deemed invalid, but the state is acting like it's just some form of caution. If they don't know, why are they erring on the side of invalidating marriages performed legally?

  • 8. SoCal_Dave  |  January 8, 2014 at 11:29 am

    Exactly. He's the AG – it's his JOB to come to a legal conclusion. If he's wrong a court will overrule him but just throwing your hands up and saying "I dunno" to a couple thousand of your citizens is pretty outrageous. C'mon Reyes, own your bigotry.

  • 9. Eric  |  January 8, 2014 at 12:29 pm

    File as married for federal purposes. If the marriages are later deemed invalid, file an amended return and ask the IRS to waive the fees based on the extenuating circumstances.

    The IRS waived over $5,000 in fees and penalties for us because of the way our taxes were filed under DOMA.

  • 10. Equality On TrialUtah gov&hellip  |  January 8, 2014 at 11:14 am

    […] observers had been awaiting the memo since the Supreme Court’s issuance of a stay, which put already-performed marriages […]

  • 11. Deeelaaach  |  January 8, 2014 at 11:12 pm

    OT for this post but not for this site: So far as I can tell, the "Referendum to Overturn Non-Discrimination Requirements for School Programs and Activities" has failed to qualify. But I don't know if they will go to a full count, or what the process is at this point, if any. The document below indicates the random sample got about 78% valid signatures, or 482,582 valid signatures of 504,760.… and

    If this is the final result, it's good news!

  • 12. Stefan  |  January 8, 2014 at 11:33 pm

    Weren't they going to recount the numbers and include those from an additional day?

  • 13. Deeelaaach  |  January 8, 2014 at 11:41 pm

    I don't know. I never heard that, but then again I don't hear everything said. And I'm not a lawyer either. Anyone else know more about this than I do?

  • 14. Deeelaaach  |  January 8, 2014 at 11:43 pm

    The link says "Final" count though if I recall correctly.

  • 15. Deeelaaach  |  January 8, 2014 at 11:50 pm

    Okay, this is what it says precisely:
    "Initiatives and Referenda Pending Signature Verification

    1598. (13-0015) – Final Random Sample – 01/08/14

    Referendum to Overturn Non-Discrimination Requirements for School Programs and Activities.

    Summary Date: 08/26/13 | Full Check Deadline: 02/24/2014 | Signatures Required: 504,760"

    I am not sure if the page changed from whatever it said to "Full Check Deadline" between the time I originally read the post and the time I posted the link. It appears they are requiring a full count. It may have said that and I may have missed it.

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